CIVIL PROCEDURE BACK TO BASICS 37: THE EVER SO HUMBLE REPLY: CANNOT BE USED TO BRING A NEW CLAIM

The closing passages of the judgment in Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) dealt with the Claimant’s reply.  It is worthwhile looking at the rules and case law relating to this aspect of civil procedure.  I am here talking about a simple reply, not a reply to defence and counterclaim,  a defence to a counterclaim is very different and I will deal with this in a later post.

THE RULES

CPR 15.8 states when a reply should be served,

15.8  If a claimant files a reply to the defence, the claimant must
(a) file the reply with a directions questionnaire; and
(b) serve the reply on the other parties at the same time as it is filed.
(Rule 26.3(1) and (6) requires the parties to file directions questionnaires and specifies the period for doing so).
(Part 22 requires a reply to be verified by a statement of truth)

 

CPR 16.y states that if a Reply is not filed then the claimant is not taken to admit the matters raised in the defence.

Reply to defence

16.7
(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.
(2) A claimant who –
(a) files a reply to a defence; but
(b) fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.
(Part 22 requires a reply to be verified by a statement of truth)

PRACTICE DIRECTION 16

9.2  A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.

A REPLY CANNOT RAISE A NEW CLAIM FOR RELIEF

In Donovan the judge observed.

  1. A Reply must be responsive to a Defence. It cannot raise a new claim for new relief: see D&G Cars Ltd v Essex Police Authority [2013] EWCA Civ 514 and Practice Direction 16 – Statements of Case paragraph 9.2. Therefore, I do not see how these passages could properly be used as a basis for inviting the Court to rule that there was an 1890 Act partnership between the Claimants and the Defendant and, based upon that finding, for the Claimants to claim to be entitled to an account of partnership profits, unless those claims are properly incorporated into Particulars of Claim and a prayer for relief in Particulars of Claim. I have refused permission for those claims to be made in the Particulars of Claim and prayer for relief. However, no application is made to strike out, and I make this point by way of observation only.